Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v BXD (No 2) [2015] NSWCATOD 135 Hearing dates: 29, 30 September 2015 Date of orders: 07 December 2015 Decision date: 07 December 2015 Jurisdiction: Occupational Division Before: Acting Judge K P O'Connor, AM, Deputy President Dr V Sutton, Professional Member Dr R Napier, Professional Member A Dix, General Member Decision: The Tribunal DIRECTS pursuant to the Health Practitioner Regulation National Law (NSW), No 86a, Schedule 5D, cl 7(1)(b)(iii) that the disclosure of the respondent's name (including any other identifying information as provided in cl 7(1)(4)) and the respondent's address be restricted to the parties and their representatives, and to any other persons or bodies where disclosure is necessary for the effective implementation and administration of the orders made in the proceedings. Catchwords: PROFESSIONAL DISCIPLINE – Medical Practitioner – Adverse Disciplinary Findings and Order – Application for Non-Publication Order – Potential Impact on health care of family member – Public interest in open justice – Whether this is an exceptional case – Application granted. Health Practitioner Regulation National Law, Sched 5D [NSW], cl 7 Legislation Cited: Civil and Administrative Tribunal Act 2013 Health Practitioner Regulation National Law No 86a Cases Cited: Health Care Complaints Commission v Dr A [2012] NSWMT 10 Health Care Complaint Commission v Vo [2014] NSWCATOD 127 Health Care Complaints Commission v XC [2015] NSWCATOD 9 Walton v Momot [1997] NSWCA 334 Category: Procedural and other rulings Parties: Health Care Complaints Commission (Applicant) BXD (Respondent) Representation: Counsel: W Hunt (Applicant) M Lynch (Respondent) Solicitors: K Mobbs, HCCC (Applicant) Meridian Lawyers (Respondent) File Number(s): 15/20081 Publication restriction: As ordered above. In addition, The Tribunal also DIRECTS that the names and addresses of the Patients referred to in the Application not be disclosed, other than to the parties and their representatives. REASONS FOR DECISION 1. This decision deals with a procedural application of significance made by a medical practitioner the subject of adverse disciplinary findings and orders. 2. In a separate decision, the Tribunal has dealt with the disciplinary application: Health Care Complaints Commission v BXD (No 1) [2015] NSWCATOD 134. The Tribunal found the respondent guilty of professional misconduct, and ordered that the respondent be reprimanded and her registration subjected to various conditions. Her misconduct involved long-term, serial misuse of her prescription authority in respect of her two children, her husband, as well as self-prescribing. The main complaint in that regard was that she had breached professional boundaries in treating and prescribing medications and drugs for herself and other members. There were also instances of conduct that was misleading or deceptive, including certifying falsely a Centrelink certificate, and failing to disclose her treatment to independent treating practitioners. 3. After the disciplinary application was lodged with the Tribunal, the respondent applied for, and was granted, an interim non-publication order in relation to publication of the name of the respondent and the names of the patients named in the schedules to the three complaints contained in the application. The order stated that it was made 'pursuant to the Civil and Administrative Tribunal Act 2013 and Schedule 5D of the Health Practitioner Regulation National Law'. The order provided that the names to which we have referred 'shall not be published to any person other than the parties to these proceedings'. 4. The hearing of the disciplinary application proceeded on 29 and 30 September 2015. The Tribunal granted the respondent's application, not opposed by the applicant, to continue the interim order until further order of the Tribunal. 5. At hearing the respondent applied for a permanent order to the above effect There has been no dispute that it is appropriate to continue the order as it relates to the identity of the patients named in the schedules. This is usual practice in this jurisdiction. 6. On the other hand, the usual practice in this jurisdiction is to identify respondent practitioners. Source of Power 1. The parties did not deal with this point in their submissions. 2. As noted, the Tribunal in making its interim order referred to both the Civil and Administrative Tribunal Act 2013 (NCAT Act) and the National Law, Schedule 5D, cl 7 as sources of power to make that order. 3. While these provisions are in very similar terms, there is one important difference. Section 64 vests the power of decision in 'the Tribunal', which in a case of the present kind, means all four members of the Tribunal. On the other hand clause 7 vests the power in the presiding member. 4. Section 64 provides: 64 Tribunal may restrict disclosures concerning proceedings (1) If the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, it may (of its own motion or on the application of a party) make any one or more of the following orders: (a) an order prohibiting or restricting the disclosure of the name of any person (whether or not a party to proceedings in the Tribunal or a witness summoned by, or appearing before, the Tribunal), (b) an order prohibiting or restricting the publication or broadcast of any report of proceedings in the Tribunal, (c) an order prohibiting or restricting the publication of evidence given before the Tribunal, whether in public or in private, or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal, (d) an order prohibiting or restricting the disclosure to some or all of the parties to the proceedings of evidence given before the Tribunal, or of the contents of a document lodged with the Tribunal or received in evidence by the Tribunal, in relation to the proceedings. (2) The Tribunal cannot make an order under this section that is inconsistent with section 65. (3) The Tribunal may from time to time vary or revoke an order made under subsection (1). (4) For the purposes of this section, a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person. 1. This is a case arising in the health practitioner discipline jurisdiction of the Tribunal. Schedule 5D of the National law is headed 'Proceedings before Professional Standards Committees or the Tribunal [NSW]'. This is a special set of provisions applicable to proceedings of the present kind in New South Wales. 2. Clause 7 provides: 7 Release of information [NSW] (1) The person presiding in proceedings before a Committee or the Tribunal may, if the person presiding thinks it appropriate in the particular circumstances of the case (and whether or not on the request of a complainant, the registered health practitioner or student concerned or any other person)— (a) direct that the name of any witness is not to be disclosed in the proceedings; or (b) direct that all or any of the following matters are not to be published— (i) the name and address of any witness; (ii) the name and address of a complainant; (iii) the name and address of a registered health practitioner or student; (iv) any specified evidence; (v) the subject-matter of a complaint. (2) A direction may be amended or revoked at any time by the person presiding. (3) A direction may be given before or during proceedings, but must not be given before the proceedings unless notice is given of the time and place appointed by the person presiding for consideration of the matter to— (a) a person who requested the direction; and (b) the complainant or the registered health practitioner or student concerned, as appropriate; and (c) another person the person presiding thinks fit. (4) For the purposes of this clause, a reference to the name of any person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person. (5) A person who contravenes a direction given under this clause is guilty of an offence. Maximum penalty— (a) in the case of a corporation, 150 penalty units; or (b) in any other case, 20 penalty units. 1. This clause has a temporal quality to it. It uses the active, present tense. It vests power in the 'person presiding in proceedings', and speaks of a 'direction being given before or during the proceedings', and of a direction being 'amended or revoked at any time by the person presiding'. It does not, for example, say anything about the steps to be followed after proceedings have concluded, or where the presiding member is no longer available. 2. However, s 64 of the NCAT Act simply vests a general power in the Tribunal to restrict disclosures concerning proceeding. It does not locate the power squarely within extant proceedings in the way seen in clause 7. While it would be usual for the power given by s 64 to be exercised as part of wider proceedings, it leaves open the possibility that the power might be exercised outside the context of those proceeding. This point is important, as we see it, in circumstances where an interested party wishes to have varied or revoked an order made in proceedings that have been completed. Clause 7 does not address that circumstance, and, it would appear therefore, that s 64 could be invoked to meet that situation. 3. In this case, as the proceedings are on foot, and the application has been made in the course of the proceedings, the Tribunal should proceed by exercising the power given by clause 7. Accordingly, this decision is made by the presiding member. Consideration 1. It is an unavoidable incident of court proceedings, and of disciplinary tribunal proceedings of the present kind, that a party found guilty will often have a deep sense of shame and embarrassment, and will be concerned for the impact of the proceedings on other members of the family and their future relationship with them. Concerns of these kinds would rarely, if ever, justify the making of a non-publication order. 2. The basis for the respondent's application is the deleterious impact that revelation of her identity would have on the health and welfare of Patient A, by, in effect identifying Patient A. 3. The applicant noted that in her professional work the respondent used her maiden name. Patient A has another surname (the married surname). This is a marginal consideration at most. It is likely, we think, that many would know the respondent under both her maiden and married surnames, and be able to make the link. 4. The Tribunal has outlined in its principal decision Patient's A health history. Since the age of 16 in 2001 she has had had a complex history of medical conditions, including drug and alcohol dependence, serious mental health problems, as well as problematic living conditions and some involvement with the criminal courts (including an offence of taking and misusing the respondent's blank prescription scrips). The complaints brought against the respondent mainly concerned the respondent's conduct in connection with Patient A. The respondent admitted all particulars of complaint. The Tribunal found that she had provided treatment and prescriptions to Patient A over a long period, had not disclosed these occurrences to treating practitioners, nor had she disclosed the nature of her involvement in Patient A's treatment, had failed to keep appropriate records, and, most importantly, had prescribed drugs and medications of a kind that might conflict with the judgment of treating practitioners, or might have affected their judgment as to the dosages and prescriptions they might have chosen to issue. 5. In support of her application, the respondent relied on the detailed medical history of Patient A as revealed by the documents found in Volume 3 of the applicant's material, from tabs 107 to 121.The respondent also relied on a report from the Patient A's treating psychiatrist. The report is dated 17 September 2015. 6. In his report the treating psychiatrist referred to Patient A's progress. He set that in the background of the various health conditions from which she has suffered. He noted that slowly but gradually she is putting her life back together. He said: She has in the past fantasized that her mother would be better off without her and that her illness is to blame for her mother's predicament. …. Currently, [she] is well engaged in treatment and will be attending two day programs at [details and frequency given] as well as attending psychotherapy [frequency given]. …A severe upset at this time could cause irreversible damage to her progress. 1. He referred earlier in this report to Patient A's fragile emotional state, and an underlying characteristic of intense shame. He referred to her feelings of blame for having put her mother in this situation. This evidence was not challenged by the applicant. The applicant did not require him for cross-examination. 2. The evidence of the respondent at hearing, and the comments made by the psychiatrist in his recent assessment, all point to steady progress being achieved by Patient A in her rehabilitation. As noted, the essence of the psychiatrist's assessment is that revelation of her identity, through the publication of her mother's name, 'could cause irreversible damage' to Patient A. 3. In opposing the application, the applicant referred to the importance of the general principle of open justice, and the particular significance of that principle in a protective jurisdiction of the present kind. 4. Disciplinary proceedings and disciplinary orders have as their ultimate purpose the protection of the public. The public has an interest in knowing whether a practitioner has been charged with a disciplinary offence, and of the outcome especially where it is adverse. The public has an interest in satisfying itself as to the integrity and fairness of decision making in relation to the conduct of professional persons. Publicity also serves that end. Other members of the profession have an interest in knowing whether a colleague has been disciplined, and the nature of the offence. Decisions also provide a marker of what is unacceptable to other members of the profession. 5. There is a close examination of the law in this area in the decision of the Medical Tribunal (Kavanagh J (presiding)) in Health Care Complaints Commission v Dr A [2012] NSWMT 10 (22 June 2012). Her Honour referred to the importance of the principle that proceedings be conducted in public ('open justice'), and the ends that principle serves. She noted the observations of Handley J in Walton v Momot [1997] NSWCA 334 at [3]: This being the prima facie method by which the Tribunal should conduct its proceedings as laid down by the Act, it follows that something special, exceptional, or out of the ordinary, must be established before the Tribunal can make an order avoiding such a result. 1. In that case her Honour decided to grant the respondent practitioner a non-publication order to operate for 3 years, calculated by reference to the time when the youngest child of the practitioner would turn 18. The practitioner had in that case placed substantial evidence before the Tribunal of the deleterious effect public disclosure of the disciplinary decision made would have on his children, most significantly the youngest child who had mental health and addiction problems. 2. There is a similarity between this case and the concerns that prevailed in the mind of the Tribunal in the case of Dr A. A major difference, however, is that family member is an adult not a teenager. 3. Another distinguishing feature is that the conduct under notice occurred when Dr A was a young man, 33 years earlier, and 10 years before he became a registered medical practitioner. The conduct (sexual assaults) resulted in convictions in the District Court in 2010. Those convictions triggered the disciplinary application. He pleaded guilty to the charges. 4. Her Honour noted that his record over his 23 years in practice had been 'unimpeachable'. The convictions were well known to many in the area in which he practised. He had taken steps to ensure that any concerns on the part of patients were met (chaperone arrangements where appropriate). 5. In Dr A's case her Honour concluded: 28 The Tribunal is of the view the prospect of a renewal of the trauma associated with repeat publicity, which trauma led to a most serious life threatening circumstance for one child and psychological damage to the doctor's other children, in such as to demonstrate the 'serious and exceptional circumstances' that justify a temporary extension of the current interim order to be in the form of a non-publication order to continue until the youngest children attain the age of 18 years of age. 1. This case is different in that the conduct of concern involved the abuse of privileges by a practitioner of great experience, the conduct is recent and it was prolonged. On the other hand, there is no evidence that there has been any publicity to date of the fact that the respondent is the subject of disciplinary proceedings and the nature of her misconduct. 2. In Health Care Complaints Commission v XC [2015] NSWCATOD 9, the Tribunal granted a non-publication order on the basis of an unchallenged professional assessment that disclosure of the respondent practitioner's identity would, given her addiction history of which she was deeply ashamed, give rise to a risk of suicide. (The respondent had ceased practice.) On the other hand, in Health Care Complaint Commission v Vo [2014] NSWCATOD 127 the Tribunal refused an application for a non-publication order for a period of approximately a year. The respondent claimed that publication of his identity would have an adverse impact on his daughter's preparation for the HSC exam (a year hence). No evidence was presented as to the likely impact of disclosure on the child. 3. There is evidence in this case of the likely impact of publication on Patient A's health and welfare. The treating psychiatrist's opinion, as already noted, was not challenged. 4. The Tribunal is satisfied that publication of the respondent's name presents a tangible risk of a significant set back in the treatment of Patient A, and her reintegration. An order is warranted primarily for the reasons given by the psychiatrist. 5. One of the purpose of publication of the identity of a practitioner found guilty of professional misconduct is to promote public safety and offer a warning to members of the public. In this instance the conduct was confined to the immediate family. There is no suggestion that the respondent has acted outside the family in any way that has presented a risk to the safety and welfare of the public. 6. The application was put as an application for a 'permanent' non-publication order. None of the recent cases to which the Tribunal has been referred have given rise to an order so described. 7. The Tribunal has considered whether it would be better to make a time-limited order, but it is difficult to judge what the time limit might properly be. 8. While no time-limit is set on the order which follows, it should not be assumed that the order is 'permanent'. 9. In the earlier part of this decision we referred to the powers of the Tribunal to revoke and amend orders. If circumstances arise that warrant a revisiting of the order, the applicant or other interested party could apply to the presiding member pursuant to clause 7, but it that is not practical - for the reasons given earlier - the application could be made under s 64 of the NCAT Act. 10. The order in relation to the non-publication of the names of Patient A, Patient B and Patient C, should be continued. That order is set out in the principal decision. Order 1. The Tribunal DIRECTS pursuant to the Health Practitioner Regulation National Law (NSW), No 86a, Schedule 5D, cl 7(1)(b)(iii) that the disclosure of the respondent's name (including any other identifying information as provided in cl 7(1)(4)) and the respondent's address be restricted to the parties and their representatives, and to any other persons or bodies where disclosure is necessary for the effective implementation and administration of the orders made in the proceedings. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 December 2015